New developments related to joint employer liability have arisen since our blog article posted on April 4, 2019. In that post, we discussed the proposed rule to narrow the definition of a “joint employer” under the Fair Labor Standards Act (FLSA). Following a review and comment period, in Jan. 2020, the U.S. Department of Labor (DOL) announced a Final Rule, adopting the rule as proposed which then became effective in March 2020.

Continue Reading Joint employer rule, now disjointed

Michigan’s Paid Medical Leave Act (PMLA) goes into effect on March 29, 2019. It requires a number of new practices for employers operating in Michigan, including revision of written policies and posting notice to employees. Below are some highlights of the PMLA about which employers in Michigan should be aware:

Who does the law cover?

Employers covered by the PMLA are those that employ 50 or more persons. What is unclear is whether an employer’s employees who work outside of Michigan would count for purposes of determining whether the employer is covered by the PMLA. Unless the sate provides clarity on the question, multi-state employers with more than 50 employees nationwide, but less than 50 employees in Michigan, will need to weigh the risks – those who choose not to comply with the law may find themselves in violation and subject to penalties.
Continue Reading Michigan Paid Medical Leave Act: Are you ready?

On Tuesday, August 28, 2018, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the issuance of six new opinion letters covering a variety of issues under the FMLA and FLSA. Specifically, the opinion letters address the following issues:

  • “No-fault” attendance policies and roll-off of attendance points under the FMLA
  • Organ donors’ qualification for FMLA leave
  • Compensability of time spent voluntarily attending benefit fairs and certain wellness activities
  • Application of the commissioned sales employee overtime exemption to a company that sells an internet payment software platform
  • Application of the movie theater overtime exemption to a movie theater that also offers dining services
  • Volunteer status of nonprofit members serving as credentialing examination graders


Continue Reading U.S. Department of Labor issues new opinion letters covering FMLA and FLSA issues

On Aug. 15, 2018, the Sixth Circuit in Gaffers v. Kelly Services, Inc. held that the Fair Labor Standards Act (FLSA) does not render an arbitration agreement that requires claims to be brought individually illegal and unenforceable. Following the Supreme Court’s recent decision in Epic Systems Corp. v. Lewis, which held that a federal statute does not displace the Arbitration Act unless it includes a “clear and manifest” congressional intent to make individual arbitration agreements unenforceable, the court rejected the plaintiff’s arguments that FLSA displaced the Federal Arbitration Act simply by providing for a right to “collective action.” Instead, the Sixth Circuit, consistent with Epic, held that the FLSA “gives employees the option to bring their claims together. It does not require employees to vindicate their rights in a collective action, and it does not say that agreements requiring on-on-one arbitration become a nullity if an employee decides that he wants to sue collectively after signing one.” The Sixth Circuit then went on to reject the plaintiff’s next argument that the Arbitration Act’s savings clause permitted the court to refuse to enforce the individual arbitration agreements because they are “illegal” under the FLSA based on Epic.
Continue Reading Sixth Circuit upholds agreement to arbitrate FLSA claims on individual basis

As we previously reported in the post “The return of Department of Labor Opinion Letters,” the U.S. Department of Labor (DOL) began issuing opinion letters again in mid-2017 after a six-plus-year hiatus. On April 12, 2018, the DOL issued an opinion letter, FLSA 2018-19, regarding when FMLA-mandated breaks for intermittent leave for an employee’s serious health condition are paid and when they are unpaid.

Continue Reading New DOL opinion letter may provide clarity as to when FMLA-mandated breaks are paid and when they are unpaid

Many employers allow students to intern in their workplaces so that the students can gain exposure to real world work, learn about a particular industry or career, or earn credit hours towards their degree requirements. If these interns are unpaid, however, employers risk liability for failure to pay minimum wage and overtime under the Fair Labor Standards Act (FLSA). Employers that enter into these arrangements without careful consideration of the FLSA risk lawsuits from former interns and United States Department of Labor (DOL) investigations.

Continue Reading New test should increase employer ability to create unpaid internship positions

Many thanks to Arslan Sheikh for his assistance in preparing this post.

In a decision issued on April 2, 2018 the Supreme Court of the United States held in Encino Motorcars, LLC v. Navarro that service advisors at an auto dealership are exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirement. Most importantly, the Court also rejected the 9th Circuit’s holding and Department of Labor policy that FLSA exemptions should be construed narrowly. Instead, courts should apply a fairness test to determine whether a particular job is covered under the exempt classifications of the act. As a result, employers should be aware of this recent decision and consider how it may apply to them.
Continue Reading Recent Supreme Court decision holds that FLSA exemptions are to be construed fairly

The U.S. Department of Labor’s Wage and Hour Division (WHD) has announced a new nationwide pilot program, called the Payroll Audit Independent Determination (PAID) program, which is designed to facilitate resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to the WHD’s website describing the program, the program’s primary objectives are to resolve wage and hour claims expeditiously and without litigation, to improve employers’ compliance with overtime and minimum wage obligations and to ensure that more employees promptly receive any owed back wages.

WHD states that it will implement this pilot program nationwide for approximately six months. At the end of the pilot period, WHD will evaluate the effectiveness of the pilot program, as well as potential modifications to the program to determine its next steps.
Continue Reading Wage and Hour Division announces pilot limited “amnesty” program